Having almost been electrocuted in a construction accident right after I graduated from high school when a crane I was standing next to swung into high-voltage lines, I was intrigued by this Cherry Avenue Auction case.

CHERRY AVENUE SWAP MEET

Cherry Avenue Auction, Inc. has been operating an outdoor swap meet on the same site in Fresno for over 40 years. The swap meet which has approximately 850 vendors operates on Tuesdays and Saturdays. Cherry Avenue rents spaces to vendors and charges $25 – $100 per space depending on location.

I was a swap meet fan having frequented the Alameda Flea Market every weekend for the first two years of law school.

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SWAP MEET BOOTH SETUP

Plaintiff Zuniga and her husband Flores were setting up a pop-up canopy. They attached two 28-foot metal poles holding advertising banners to the pop-up frame, anticipating the banners would attract customers. Others at the swap meet did the same.

Zuniga and Flores setup in rented spaces 38 and 39 which were among 30 vendor spaces located under an existing powerline owned by PG&E which was 26 feet above the ground.

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Unfortunately, one of the metal poles touched a high voltage wire and Flores was electrocuted. Zuniga claimed not to have noticed the powerline although it was visible. None of the materials Zuniga and Flores were given as a tenant of the swap meet mentioned anything about the powerline. Zuniga sued Cherry Avenue Auction for negligence.

DUTY OF A PROPERTY OWNER

A property owner must “use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could reasonably expect to harm others.”

The legal question in our case was whether Cherry Avenue had a duty to warn Zuniga and Flores.

One exception to the duty to warn is that if the unsafe condition of the property is so obvious that a person could be reasonably expected to observe it, then the property owner does not have to warn others about the dangerous condition. Cherry Avenue argued the powerline was obviously dangerous. Zuniga claimed otherwise.

COMPARATIVE NEGLIGENCE

The trial court ruled for Zuniga. Cherry Avenue appealed.

The Fifth Appellate District Court of Appeal wrote, “there was adamant abundant evidence that Cherry Avenue created the dangerous condition by establishing vendor spaces under the powerlines all the while knowing that people would setup booths under the powerlines and raise banners to draw attention to their booths. It was foreseeable that persons who would not see, or more likely appreciate the danger posed by the high-voltage powerlines.”

The Court upheld the trial court’s decision finding that Cherry Avenue was 77.5% responsible, Zuniga 11.25% responsible and her husband Flores 11.25% responsible resulting in $9,493,750 to Zuniga.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.